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Justice Dept. Is Criticized as Corruption Cases Close

WASHINGTON — The Justice Department has shut down a wave of high-profile investigations of members of Congress over the past few months, drawing criticism that the government’s premier anticorruption agency has lost its nerve after the disastrous collapse last year of its case against former Senator Ted Stevens.

This month, lawyers for Senator John Ensign, Republican of Nevada, announced that federal prosecutors had told them they would not charge the senator with conspiring to help a former aide, with whose wife he had had an extramarital affair, violate a lobbying law.

A few days later, lawyers for Representative Jerry Lewis, Republican of California, facing scrutiny for steering government spending to campaign donors, said they were told that their client would not be charged, either.

Other federal corruption investigations known to have been ended without charges this year had focused on Tom DeLay, the former House majority leader and Republican of Texas; Representative Don Young, Republican of Alaska; and Representative Alan B. Mollohan, Democrat of West Virginia.

“They’re gun-shy,” said J. Gerald Hebert, the executive director of the Campaign Legal Center, a nonpartisan group that seeks greater disclosure of how money influences politics.

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Former Senator Ted Stevens.Credit
Brendan Smialowski for The New York Times

But in interviews, Jack Smith, chief of the Public Integrity Section at the Justice Department, and his supervisor, Lanny Breuer, the assistant attorney general for the Criminal Division, hotly contested the contention that prosecutors were in retreat from taking on Congressional corruption.

“It’s just not the case that anyone is gun-shy,” Mr. Breuer said. “If a case cannot be brought, it’s because we’ve taken a hard look and made the determination that this case cannot be proved beyond a reasonable doubt. And with all due respect to those outside the department, they haven’t seen the evidence. They don’t know the materials, and we’ve looked at it all.”

The officials would not discuss why they declined to bring charges in specific investigations. The subjects of inquiries are free to announce that cases have been closed, however, and frequently portray such decisions as proof that they had done nothing wrong.

“I understand why the question is asked,” Mr. Smith said. “But if I were the sort of person who could be cowed — ‘I know we should bring this case, I know the person did it, but we could lose, and that will look bad,’ I would find another line of work. I can’t imagine how someone who does what I do or has worked with me could think that.”

Mr. Smith took over the section six months ago. Before that, he helped prosecute police officers in the Abner Louima police brutality case in New York and investigated war crimes for the International Criminal Court.

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Representative Jerry LewisCredit
Michael Temchine for The New York Times

One partial explanation behind the flurry of closings was the timing of Mr. Smith’s arrival. One of his first steps, he said, was to review every open case and push for a conclusion one way or the other, saying it was not fair to let inquiries linger unnecessarily.

Mr. Breuer said, “There is no question that if we thought a case was not going where it needed to, because the facts were what they were and it was too old, that we should make the tough decision and move on.”

Both officials also said that whether the subject of an investigation was a member of Congress made no difference to their evaluations of cases.

That assertion drew some skepticism.

“I don’t think there is any question that the decision to charge a sitting member of Congress is going to get far more scrutiny and it’s going to be agonized over by a lot more people,” said Peter Zeidenberg, a former public integrity prosecutor.

Mr. Zeidenberg also said prosecuting lawmakers had become more difficult in recent years because of federal court rulings. They narrowed what counts as “honest services fraud” or an “official act” for the purposes of a bribery charge, and banned certain searches that could expose legislative information protected by the Constitution’s “speech and debate” clause, he said.

It does not appear, however, that any of the recent decisions not to charge members of Congress turned on those rulings.

Despite the quiet end to several of its highest-profile investigations, both Mr. Smith and Mr. Breuer portrayed the Public Integrity Section as reinvigorated after the turbulence it experienced 20 months ago, when its case against Mr. Stevens, Republican of Alaska, who died in August, collapsed because the trial team had improperly failed to disclose mitigating evidence.

In the fallout, the trial team found itself under investigation, the section’s top two leaders were re-assigned and one member of the trial team later committed suicide.

But Mr. Smith said that morale in the section was now good and that hundreds of lawyers had applied for recent job openings there, despite the travel demands and what he described as the inevitable criticism that comes with handling corruption cases.

He also as instituted practice runs for trials, in which veterans critique opening statements and offer advice, while telling prosecutors to focus less on the number of cases they bring than on bringing “high impact” cases with deterrent effects.

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Tom DeLay, the former House majority leader. Federal corruption investigations against the four men have been shut down without charges.Credit
Ben Sklar/Getty Images

As an example, he pointed to the recent indictment of 11 Alabama state legislators, staff members and lobbyists over an alleged vote-buying scheme. (One lobbyist pleaded guilty to bribery charges on Monday.)

Mr. Smith also pointed to the case against the lobbyist, Paul Magliocchetti. A former aide to John P. Murtha, the late Democrat of Pennsylvania and House Appropriations Committee chairman, Mr. Magliocchetti pleaded guilty to making illegal campaign contributions in September.

Still, the record of a wider investigation into a circle of lawmakers who had steered federal spending to Mr. Magliocchetti’s clients is murkier.

One main figure, Mr. Murtha, died in February. Another, Representative Peter J. Visclosky, Democrat of Indiana and an appropriations subcommittee chairman, received a subpoena in May 2009, but there has been no public sign of further developments.

The investigation into a third lawmaker with ties to Mr. Magliocchetti’s firm, Mr. Mollohan, was closed in January. Several months later, after his primary campaign opponent attacked his ethics, he was defeated.

Mr. Breuer, emphasizing that he was not discussing any particular case, noted that criminal law was just one of several ways by which society policed the behavior of elected officials.

“Conduct that people think is reprehensible or immoral doesn’t mean it’s criminal,” Mr. Breuer said. “If there is a criminal case to bring, we’ll bring it. If there isn’t one to be brought — no matter if we like the conduct or don’t like the conduct, like the people or don’t like the people — we won’t bring it.”

A version of this article appears in print on December 21, 2010, on Page A21 of the New York edition with the headline: Justice Dept. Is Criticized As Corruption Cases Close. Order Reprints|Today's Paper|Subscribe